On 22 November 1991 some of the deputies of the Crimean ASSR Supreme Soviet put forth a proposal to appeal to the president of the USSR. They wanted to ask the Soviet president to repeal the 1954 USSR Supreme Soviet Presidium's ukaz on "The transfer of the Crimean province from the RSFSR to the UkrSSR."
From 1954 until Ukrainian independence was proclaimed last year, the judgments of that transfer were unanimous: the decision of the USSR Supreme Soviet Presidium in 1954 was historically justified. It was heralded as a testament to good Ukrainian-Russian relations; a triumph for sober thought; a recognition of objective realities.
However, these views quickly disappeared following the Ukrainian declaration of sovereignty in July 1990. The leaders of the USSR, the CPSU and the Crimean province began to emphasize that the 1954 ukaz was merely a 'gift' to Ukraine in honour of the three-hundredth anniversary of Bohdan Khmelnytsky's treaty with Russia.
The territory of the Crimean Peninsula was transferred to Ukraine in accordance with the USSR Constitution of 1936. Article 49 of that document outlined the powers of the USSR Supreme Soviet, among which no mention was made regarding the transfer of territory. However, Article 14, subsection '(d)' stated that "ratification of any border changes between Union republics" is a prerogative of the Union of Soviet Socialist Republics. Furthermore, Article 31 included the following clause:
"The Supreme Soviet of the USSR cedes the implementation of all rights granted the Union of Soviet Socialist Republics, in accordance with Article 14 of the Constitution. insofar as they are not explicitly included in the powers granted by the Constitution, to the responsibility of the subordinate organs of the USSR Supreme Soviet, the USSR Supreme Soviet Presidium, the USSR Council of Ministers and all USSR ministries "
Therefore, such an act could only have been legally carried out by the USSR Supreme Soviet. It must also be noted that the USSR Supreme Soviet was not granted arbitrariness in these questions. Thus, Article 18 of the Constitution included a clause stating that "territories of Union republics may not be changed without their consent."
The question of why such attention was paid in the Constitution to the issue of state territory may arise. This is due to the fact that the question of transferring legal and public authority on a given territory of a given state carries international legal implications. When such a transfer occurs in violation of international legal norms or national legislation, it must be considered legally invalid. It is therefore naive to maintain a question of legality as the motivation for the transfer of Crimea to Ukraine.
Why, then, and how, was Crimea 'given' to Ukraine? Answering the question 'why' will help in clarifying the economic factor considered in the 1954 act, while answering the question 'how' will explain the legal and procedural process of the transfer. Only when considering the two questions in tandem can one arrive at any conclusion as to whether or not the 1954 act contradicted the norms of international law. This is a point of view that is presently maintained.
In order to proclaim state jurisdiction on any territory, it is not legally sufficient to do so in a legislative act. The questions of effective government, concerns of the people living on this territory, and economic responsibilities must be resolved. Of course, it is more convenient to assert authority over a territory through the use of repression, the enforcement of a police state or through terror. However, these methods invariably lead to economic collapse; and from economic collapse to a state in crisis.
This was the path chosen by Tsarist Russia in its policy towards Crimea. Moreover, Soviet Russia in essence repeated the same mistakes committed by imperial Russia. Their common and perhaps greatest mistake was to sever the historical ties between Crimea and Ukraine. The proclamation of Soviet Russian statehood in Crimea led to this interruption. Henceforth any relations Ukraine wished to conduct with Crimea were forcibly channelled through Russia proper. The inefficiency of such a relationship soon became evident in the Crimean economy and, more importantly, in the severely decreased material well-being of the Crimean population. For instance, in 1919, while the population of Crimea was faced with the threat of famine, Ukraine sent flour and sugar directly to Crimea, and the situation was alleviated. However, when Crimea became a territorial part of the RSFSR, this same aid would have to be channelled through Russia proper first in order to arrive there.
Ukraine thus delivered material aid and encouraged the development of a strong infrastructure for relations with Crimea. Ukraine also knew that sanctions from Moscow would soon be forthcoming. Yet, the Soviet Russian government was unable to liquidate existing economic laws. Thus, many of the decisions made by Russia ended up being mutually excluding. For example, Lenin and the RKP(b) Central Committee adopted a resolution recognising the complete subordination of Crimea exclusively to the Russian Sovnarkom and the All-Russian CEC. Meanwhile, on 20 May 1919, the Deputy Postal Commissar, Liubovich, the Ukrainian Postal Commissar, Khalepsky, and a Crimean representative, Izvekov, announced the following:
"Considering the limited number of postal-telegraph offices in the Soviet territories of Bessarabia and Crimea and their direct subordination to Soviet Ukraine, the postal administrations of these republics are uniting with the People's Postal Commissariat of Ukraine which will have jurisdiction in these territories." [46]
Gradually, ties between Ukraine and Crimea begin to renew and develop. Yet the greatest obstacle, Moscow, still intended to carry out its own plan for Crimea.
At the May 1921 plenay session of the RKP(b) Central Committee it was reported that the revolutionary committees had succeeded in fulfilling their tasks and that Crimea had officially become a part of the RSFSR. The price exacted for this success was enormous. Because of the civil war raging in the territories of the former empire and the miscalculations of the new Soviet government, a famine besieged Crimea. A large number of industrial enterprises ceased activity altogether. However, the civil war was not the sole factor contributing to the famine. There existed, in addition to all the other ills of the time, a severe labour shortage. The Tatar population simply did not take to the cities and factories, while the Tatars' subsistence-level economic activity had no consideration in the plans of the Soviet government. Moreover, a campaign was waged to eliminate the stratum of small, private businesses and the 'bourgeoisie resulting in many Ukrainians fleeing persecution and Russification by moving to the southern provinces of Ukraine. This left a large economic gap in Crimea, since these Ukrainians represented the main agricultural force in Crimea.
For those who remained behind in Crimea, there was a lack of farming equipment horses and landholdings. To exacerbate the dilemma, grain, meat and dairy product deliveries from Ukraine were suddenly decreased. Between 1921-22 more than 150 thousand Crimeans died as a result of the famine. Despite this, Lenin stated at a meeting of the Moscow RKP(b) organisation in December 1920:
"Even though after three years of war we still cannot catch all those loose pigs, it must still be said that these people have no place in the governing of a state. We are tackling immeasurably more difficult tasks. For example, there is a 300 thousand-strong bourgeoisie in Crimea. This is a source of future speculation, espionage and all kinds of aid for the capitalists." [47]
Most of the 'loose pigs' mentioned by Lenin were indeed eliminated, decreasing the Crimean population by 300 thousand. In order to replace such great losses in the labour force (in 1922 there were eleven workable tractors in all of Crimea), even more developed countries would require decades. However, the fight against 'banditry' still continued in Crimea. The campaign publicly rationalised that the Tatars were 'barbarians' who must be raised to the level of consciousness embraced by the world revolution. Ukrainians were similarly depicted as racial hybrids, who contained a wild mixture of northern tribal and Tatar blood. Russian workers and peasants in Crimea were described as 'freeloaders and drunkards.' Anyone who dared offer any opposition to the imposition of the new Soviet regime was immediately labelled a 'White Guardist' and condemned to destruction. All of the instances of physical liquidation carried out by Bolsheviks against the population were then widely blamed on the 'White Guardists.' In response to these developments representatives of various nationalities (which numbered nearly seventy at the time in Crimea) formed a united front to fight the Bolsheviks: Ukrainians rallied around Rada supporters; Tatars rallied around the 'Milli-firk'; Jews rallied around the Bund, while Russians rallied around the Kadets, Octobrists and other groups. This in turn elicited a harsh response from the Bolshevik authorities.
Peasants were refused the land they were promised by the Bolsheviks. Crimea's sowed land decreased by thirty percent, while peasants were allowed only two desiatyny for their own use - 6.3 desiatyny in the steppe regions. The plan to reconstruct Crimean industry that was proposed by the Crimean party obkom completely fell through and still remained unrealised at the end of the twenties.
This created the impression that the emissaries sent by Moscow and the local population lived in completely different realities. For instance, while the famine struck Crimea, the Crimean party obkom was devoting all its attention to preparing and distributing preelection campaign literature. Thus, the 1926 level of industrial output was a mere 58.6% of the 1913 level.
The mishandling of the economy and the demographic and cultural policies of the Bolsheviks also resulted in the destruction of the local cultural traditions and lifestyle. In a very short period of time, there remained only a small fraction of the formerly indigenous population. The trend towards the eradication of national minorities lasted until the beginning of World War ll. In 1926 national minorities comprised 10.1% of Crimea's population, while by 1939, the figure dramatically dropped to 5.2%.
The 'mobilisation of forces' designed to collectivise the peasant in the whole USSR resulted in 104 anti-Soviet manifestations in 1930. This was quickly answered with a campaign of mass arrests of kulaks. Ukrainians, Tatars, Germans, Jews and others began to flee back to Crimea hoping to avoid arrest. However, their flight only resulted in the generation of a new campaign of arrests aimed at liquidating "elements with resettlement aims." Regardless of the fact that by 1931 the stratum of successful peasantry was all but eliminated, 1.5% of the peasantry were still considered to be kulaks and were subsequently arrested or deported to labour camps. The RKP(b) Central Committee adopted a resolution on 2 September 1931 which stated:
"2) We are now able to consider collectivisation in the main a completed process... In Crimea, 83% of peasant landholdings have already been collectivised, which translates into 93% of all sowed peasant land.'" [48]
In order to give primacy to the collectivised farms, peasants were deprived of their grain and a new wave of famine began. The peasant was in essence completely broken. Those who survived remained as mere serfs in the eyes of the Soviet state.
The working class did not fare much better than the peasants had. A wave of arrests swept the Crimean working class in 1931, because of 'saboteurs' who were discovered at the Kerchensky State Metal Works and the Simferopil Naval Factory. In 1932 'saboteurs' were again discovered at the Kerchensky Metallurgical Plant, Saksky Chemical Plant and various other factories throughout Crimea. The nascent Crimean working class was thus also practically liquidated by the beginning of the Second World War.
Whole echelons of new recruits were being sent into Crimea to replace the eliminated workers and peasants, which resulted in a Crimean population rise from 714.1 thousand in 1926 to 1.13 million by 1939. The Russian population concurrently increased from 301.4 thousand to 558.5 thousand. This meant that for the first time the Russian population of Crimea outnumbered all other groups from amongst the indigenous population.
In addition to all of the above, the lack of appropriate material resources in the established administrative-command system meant certain doom tor Crimea economy. A large portion of these resources was transferred by Moscow from Ukraine to Crimea. This resulted in the demand for certain necessary changes in Moscow's policy. Moscow soon began to create new ties or renew long-abandoned ones between Ukraine and Crimea. The Kerchensky iron ore basin was thus made a responsibility of the Donetsk-Kryvorih coal and metallurgical administrative structure. The Simferopil rail station with its huge Dzhankoi junction was given over to the Stalin Railway, which fell under the administration based in Dnipropetrovsk. The road transport system was given over to the joint control of Ukrainian and Crimean administrations. In this manner a large part of Crimea's infrastructure gradually came under Ukrainian jurisdiction. Food production, light industry goods, water and electric energy were all exported to Crimea from Ukraine.
However, Moscow still did not suspend the campaign to eradicate the Ukrainian element in Crimean life. Ukrainians in Crimea were gradually eliminated from positions of authority (by 1927, the Crimean CEC consisted of only 6.7% Ukrainians). Ukrainians were also ignored during the rezoning of Crimea's national/regional borders. In 1930, sixteen regions were created in Crimea; of these, five were Tatar, one was Jewish, nine were Russian and one Ukrainian. In 1935, the regions were again reorganised, with two Tatar regions, six Russian, one German and no Ukrainian ones. Despite Moscow's administrative arbitrariness towards Ukrainians in Crimea, relations between Ukraine and Crimea continued to grow and develop.
It would be erroneous to imply that only Ukrainians suffered from Moscow's Crimean policies. The process of Russification and the penetration of the Russian state structure into Crimea also negatively influenced the development of other nationalities. In 1939 Moscow imposed the Russian alphabet on the Tatar language; many nationalities were deprived of the right to their own schools, cultural institutions o press.
The coming of the war dealt a serious blow to the Crimean economy. The whole peninsula had only 99 high schools and 342 economic enterprises. The population decreased to 780 thousand, equal to the 1926-27 level. However, the State Defense Committee headed by Stalin adopted a resolution on 11 May 1944 regarding the deportation of Crimea's Tatars, Armenians, Bulgarians and Greeks. As a result, 228,543 people were removed from Crimea, among them 191,088 Tatars. Ruined by the war, Crimea was deprived of more than a third of its economic resources.
Crimea, therefore, had neither the material nor the human resources to realise the program for reconstructing its economy. In order to cover up the artificially-created demographic vacuum in Crimea, the Soviet government began to recruit settlers for Crimea in the RSFSR and Ukraine. Families and even whole collective farms were forcibly uprooted and transported to Crimea. At the beginning of 1945, 17,040 families were resettled in Crimea and from 1950-54, an additional 57 thousand people were moved there.
The resettled collective farms were unable to adapt to their new surroundings and new conditions. The essentially feudal environment that existed in Crimea, coupled with a drought in 1946, forced many of those resettled simply to flee Crimea. The Crimean party obkom adopted a resolution at its plenary session in July 1946 in order to prevent any further flight from Crimea. Nevertheless, in 1947 the stream of refugees leaving Crimea grew even greater. In October 1947 the party obkom adopted harsher measures to deal with the fleeing refugees. This had little effect in decreasing the tide, and a cyclical dynamic was created, whereby new settlers were constantly brought in to replace those constantly escaping. It was thus hardly possible for the authorities to even dream of any effective plan for economic recovery under such unstable conditions.
Ukraine came to Crimea's aid at this time, offering considerable assistance in reconstructing the latter's beleaguered economy. Ukrainian engineers designed and built special mining equipment for Crimea; Ukrvodbud began the reconstruction of the Simferopil and Staro-Krymsk reservoirs and the North Crimean Canal. Several metallurgical plants in Ukraine merged with counterparts in Kerch and Balaklava; industrial production and food were sent to Crimea from Ukraine.
In essence, the economies of Crimea and Ukraine gradually became one indivisible mechanism in the post-war years. However, this merging of economic infrastructures was not accompanied by a corresponding legislative framework The disaffection of Crimea's population due to low standards of living, prompted various leaders of local councils to inform the Crimean Oblast Executive Committee and the USSR Council of Ministers that the people were demanding the unification of Crimea and Ukraine and an end to administrative incompetence. The authorities could thus no longer afford to ignore the people of Crimea.
There are those who maintain that "Crimea was given to Ukraine as a present by Khrushchev," ignoring the fact that Khrushchev played little or no part in the transfer. At that very time, Khrushchev was engaged in a bitter and ominous power struggle. The September 1953 CPSU Central Committee plenary session saw an entrenchment of Khrushchev's power amongst the rank and file of Soviet society, but the international community continued to view Georgy Malenkov as the more influential of the two figures. In these conditions Khrushchev risked losing all that he had worked for decades to achieve, and thus devoted all his attention and energies to his own political survival. He had risen to the post of party First Secretary at a time when the Central Committee was replete with individuals whom Khrushchev could not trust. Moreover, while collecting evidence with which to attack his pro-Stalinist opponents, Khrushchev had a damaging card in his hand with Stalin's deportation of the Crimean Tatars. Thus, a sharpening of tensions in Crimea was not at all conducive to Khrushchev's political plans. As a result, he distanced himself from the whole Crimean affair and allowed his rivals to deal with its solution.
It is evident that Khrushchev's political rivals were no less cunning than he. Albeit with political manuevering in mind, for perhaps the first time in Soviet history a matter was approached in strict accordance to existing legislation (regarding the nationalities question). Firstly, Crimea was discussed in the RSFSR Council of Ministers, which, after considering all the available evidence, concluded as to the necessity "of the transfer of the Crimean province to the Ukrainian SSR." The Council of Ministers presented its proposal to the Presidium of the RSFSR Supreme Soviet, which then consulted the leaders of the Ukrainian republic regarding the Council's proposition. Having received tentative agreement from the Ukrainian leaders, the Presidium adopted the following resolution:
"The Presidium of the RSFSR Supreme Soviet in conjunction with representatives of the Crimean provincial and Sevastopol city Councils of workers' deputies has studied the proposition put forth by the RSFSR Council of Ministers regarding the transfer of the Crimean province to the Ukrainian SSR."Considering the commonality of the economic systems, the territorial proximity and the close economic and cultural ties between the Crimean province and the Ukrainian SSR; in addition considering the agreement of the Ukrainian republic Supreme Soviet Presidium, the Presidium of the RSFSR Supreme Soviet finds it purposeful to transfer the Crimean province to the territory of the Ukrainian Soviet Socialist Republic." [49]
The RSFSR Supreme Soviet Presidium forwarded a copy of its resolution to the Ukrainian SSR Presidium.
In reply, on 13 February 1954 the Ukrainian Supreme Soviet Presidium began deliberations on the question of the former's resolution. After discussing the matter, the following resolution was adopted:
"Discussion of the RSFSR Supreme Soviet Presidium resolution on the question of the transfer of the Crimean province from the RSFSR to the Ukrainian SSR was proposed for consideration by the Presidium of the Ukrainian SSR Supreme Soviet. The Presidium of the Ukrainian SSR Supreme Soviet would like to express its sincere gratitude to the Presidium of the Russian Soviet Federated Socialist Republic Supreme Soviet for this generous, noble act on the part of the brotherly Russian people.
"With a deep sense of elation and arduous gratitude, the people of Ukraine will greet the decision to transfer Crimea to the Ukrainian SSR as the latest brilliant manifestation of the boundless trust and sincere love of the Russian people towards the people of Ukraine, a new testament to the inviolable brotherly friendship between the Russian and Ukrainian people.
"The government of Ukraine will undertake the further development of the Crimean economy.
"The Ukrainian SSR Supreme Soviet Presidium resolves in reply to the resolution of the Presidium of the Russian Soviet Federated Socialist Republic Supreme Soviet to:
"Request the USSR Supreme Soviet Presidium officially transfer the Crimean province from the Russian Soviet Federated Socialist Republic to the Ukrainian Soviet Socialist Republic."
This resolution was sent to the Presidium of the USSR Supreme Soviet. Noteworthy is the fact that since the Presidia of both the Russian and Ukrainian Supreme Soviets adopted these resolutions, this created a certain 'agreement in principle' between the two republics. In terms of international law, this in turn made the resolutions a legally binding set of documents, since they were adopted by authoritative organs mandated to enact them.
The Ukrainian SSR Supreme Soviet Presidium had acted in strict accordance with Article 15(b) of the 1937 Ukrainian SSR Constitution. Concurrently, the RSFSR Supreme Soviet Presidium was in adherence of Article 16(a) of the RSFSR Constitution. These articles gave the respective Presidia full power and legal right to conclude such agreements. Thus, a nullification of the agreement was only possible in the case of a new agreement being concluded between the two republics. In addition, this agreement involved the question of a modification of borders between the two republics. Since these questions were by law deferred to All-Union organs of power, the final ratification of the agreement lay with the USSR Supreme Soviet.
A meeting of the USSR Supreme Soviet Presidium was called for 19 February 1954, with representatives of all the involved parties being invited as well. The meeting was not attended by Khrushchev and its outcome was completely beyond his influence. The first to speak was the Chairman of the RSFSR Supreme Soviet Presidium, M.P. Tarasov, who stated:
"The Crimean province, as is well known, occupies the whole Crimean Peninsula and is territorially a part of the Ukrainian republic, being a natural continuation of the southern Ukrainian steppes. The economy of the Crimean province is closely tied to the economy of the Ukrainian republic. Thus out of geographic and economic considerations. the transfer of the Crimean province to the brotherly Ukrainian republic is timely and in accordance with the interests of the Soviet state."...The victory of the Great October Revolution further strengthened the centuries-old friendship of the Ukrainian and Russian people and has now further strengthened the ties economic and cultural ties between Crimea and Ukraine." [50]
At the conclusion of his speech Tarasov read the RSFSR Presidium Resolution and asked the USSR Supreme Soviet Presidium to ratify the transfer.
In response, the Chairman of the UkrSSR Supreme Soviet Presidium, D.S. Korotchenko, announced that the Russian Presidium's resolution "was greeted by all the people of Ukraine with gratitude and approval." He also assured the USSR Supreme Soviet Presidium that, for its part, the Ukrainian government was ready to devote further attention to developing Crimea's economy and raising the material and cultural well-being of the workers in the Crimean province. [51] Korotchenko in turn read out the Ukrainian Presidium's resolution from 13 February 1954.
M.M. Shvernyk, a member of the USSR Supreme Soviet Presidium, added that,
"Without a doubt, this historical act will serve the cause of the further uninterrupted economic development of the Crimean province within the Ukrainian SSR. The Crimean province will develop to even greater extents, will increase the output of its priceless vineyards, tobacco and wheat fields, and increase the productivity of its domesticated animal stock." [52]
The Chairman of the USSR Supreme Soviet Presidium, K.E. Voroshilov, concluded the talks, following which the Presidium ratified an ukaz relating to the transfer
"Considering the commonality of the economies, the territorial proximity and the close economic and cultural ties between the Crimean province and the Ukrainian SSR, the Presidium of the Union of Soviet Socialist Republics Supreme Soviet resolves:"To ratify the mutual representation of the Presidium of the RSFSR Supreme Soviet and the UkrSSR Supreme Soviet regarding the transfer of the Crimean province from the Russian Soviet Federated Socialist Republic to the Ukrainian Soviet Socialist Republic." [53]
However, this was not yet the final word. The Collection of Ukrainian SSR Laws and Supreme Soviet Presidium Resolutions includes a legally incorrect addendum on page 33, which states that, "[t]he Crimean province was transferred from the RSFSR to the Ukrainian SSR by the Ukaz of the USSR Supreme Soviet Presidium on 19 February 1954." However, as has been noted above, the USSR Supreme Soviet Presidium did not have the authority to do so under the 1936 USSR Constitution. It was the USSR Supreme Soviet alone that had this authority. At that very time the Third Calling of the USSR Supreme Soviet had concluded its proceedings and a pre-election campaign was under way in the USSR. The transfer of Crimea to Ukraine became the subject of debate with the electorate at candidate meetings all over the USSR. The first session of the Fourth USSR Supreme Soviet Calling did not begin until 20 April 1954.
On 26 April 1954, following a discussion of the transfer, the USSR Supreme Soviet unanimously ratified the law in the following form:
"The Supreme Soviet of the Union of Soviet Socialist Republics resolves:"1. To ratify the USSR Supreme Soviet Presidium Ukaz of 19 February 1954 concerning the transfer of the Crimean province from the RSFSR to the Ukrainian Soviet Socialist Republic.
"2. To introduce appropriate amendments to articles 23 and 24 of the Constitution of the USSR." [54]
This, therefore, was the final ratification. As is evident, Khrushchev had very little to do with its passing. Others maintain that "Russia gave Ukraine the Crimean province as a gift in commemoration of the three-hundredth anniversary of the 'union of Ukraine and Russia." The adopted resolution concerning the transfer made no mention of the transfer being characterised as a 'gift'.
Attempts to find any violation of international legal norms in the transfer legislation have also been invariably fruitless. Contemporary international law recognises the legality of a voluntary transfer of sovereignty over a given territory between two governments according to an agreement of the two. The only prerequisite stipulated by international law demands that the state receiving territory must provide inhabitants of that territory the opportunity to choose either to maintain their former or their new citizenship. In the case of the Crimean transfer, however, this prerequisite did not apply because Article 21 of the 1936 USSR Constitution stated that, [a] single Union citizenship is established for all citizens of the USSR."
There is, nevertheless, one further important consideration regarding the 1954 transfer of the Crimean province to Ukraine. Presently, many of those who are in support of returning Crimea to Russia are hopeful of a referendum. Yet, according to the norms of international law, territorial questions involve the holding of a plebiscite. The terms 'plebiscite' and 'referendum' are often mistakenly employed interchangeably. Although the two processes do indeed have much in common, there are as many differences as there are shared traits between the two.
Juridical science and legal practice define referendum as concerning national questions, while plebiscite refers to international questions of law. The aim of the referendum is to resolve questions of a constitutional and legislative nature.
Concerning territorial questions, a referendum can legally resolve only questions of an internal, territorial-administrative character. Questions regarding the transfer of territories from one state to another may only be resolved by a referendum when the process involves a voluntary agreement between the states involved in the transfer and only if the inhabitants of the given territory do not protest such a decision.
Those, who are promoting the transfer of Crimea to Russia are attempting to squeeze the matter under the rubric of a territorial-administrative question. However, when all interested parties expressed their views on Crimea, especially following the declaration of Ukraine's independence, the possibility of resolving the matter through a referendum was categorically dismissed. Under the present conditions, which find Ukraine as an independent state, it is possible to resolve the question exclusively through a plebiscite on the basis of international legal norms. The mechanism for holding a plebiscite is substantially different from the one that governs the holding of a referendum. The plebiscite must be carried out according to these, and not national, norms; otherwise the results can be declared invalid and not legally binding.
What are the necessary conditions under which a plebiscite can be held? In, the first place, international law considers states, nations and their peoples as legal subjects under a plebiscite. The nation and people in question must occupy a common territory, have a common historical past, language, culture and the common aim of self-determination. It is clearly evident that even this first condition is not applicable in the Crimean case.
It is possible to cite yet more examples as evidence indicating the inapplicability of a plebiscite in Crimea. The overriding factor remains that a separate, singular nation has never formed in Crimea, and thus the only legal subject of a plebiscite is absent. The more than million people who were resettled in Crimea in the forty-five years after World War ll cannot be considered a nation. This in turn is not to imply that the population of Crimea is without any international legal rights or defence. Effective in Crimea are all the conditions of international pacts, conventions and other human rights documents that apply to Ukraine as a member of the international community.
One can postulate that theoretically, the population of Crimea (including Russians, Ukrainians and Crimean Tatars as the majority of that population) could unanimously endorse the creation of an independent, sovereign state in Crimea. In such a case, how could this be achieved according to international law? International law requires the establishment of optimal democratic conditions for the holding of a plebiscite. In order for this to be realised, there must be complete stability on the territory in question, as well as an absence of any military presence; this would mean the withdrawal of all presently stationed troops in Crimea. Such a condition is necessary not simply in order to avoid the electoral influence that such troops would have (as representing interests from outside Crimea, since the majority of the military in Crimea does not consist of Crimeans); but also in order to avoid the possibility of using military coercion to affect the outcome of the plebiscite.
The present government in Crimea must also suspend its activity and dissolve itself, due to the fact that it has existed under a former regime and could not be honestly expected to carry out a fair plebiscite. In its place, it would be necessary to establish a provisional governmental structure with representatives democratically elected exclusively from the local population. This provisional government would be solely responsible for the complete plebiscite process. Once the plebiscite is held, this provisional government would then itself dissolve and following further democratic elections a new government and administrative infrastructure could be formed
Any external influence in the preparation and holding of the plebiscite must be categorically prohibited The plebiscite cannot be held if borders with contiguous states are not finalised and these states are not officially informed of Crimea s territorial intentions.
The legal rights and responsibilities of the electorate must also be clearly defined under appropriate legislation. The wording of the plebiscite must be succinctly formed in order that each voter could clearly understand, what choice he or she is being asked to make. The voter must also be aware that his vote concerns only the resolution of the territorial question. Thus, any wording on the plebiscite ballot that does not directly pertain to the territorial question is inadmissible. Moreover, no additional ballots, intended to resolve any other questions, may be added to the territorial ballot. According to international law, there may be only one ballot issued to every registered voter.
The right to participate in the plebiscite is given to all legal citizens of the territory in question. Therefore, a plebiscite is inherently impossible until such a time as all Tatars, Ukrainians, Russians and others who had been forcibly removed from Crimea are allowed to return to their native territory. This also includes all those, who due to persecution or a threat to their safety, were forced to flee Crimea in order to ensure their lives.
The structure to be created for the organisation and carrying out of the plebiscite, as well as the police force that must be present to maintain order, must be created from amongst the local population as well. A working system of control must also be in place. It is imperative that the whole process meet with accepted international legal norms. In the event that local authorities are unable to meet this condition, they have the right to seek the aid of the United Nations in order to ensure the strict legality of the plebiscite and the determination of its results. Representatives of the international mass media must be allowed to follow the process of the plebiscite in order to attest to its objectivity.
A plethora of other conditions relates to the holding of a democratic plebiscite. As noted above, however, a plebiscite cannot legally be held in Crimea since the population of Crimea is not considered a legal subject for determining the transfer of public authority on a given territory, or between one state and another. The only legal subject that has the right lo do this in the Crimean case is Ukraine.
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Volodymyr G. Butkevych, a Ph.D. in juridical studies, currently heads the Ukrainian Institute of International Relations' Department of International Law. He is also the Vice-President of the (former Soviet) International Law Association. His studies have focused on the protection of human rights in the USSR and in Ukraine, as well as on the chasm between Soviet legal standards and international norms. In addition, Butkevych is the Chairman of the International Human Rights Conference's Organisational Committee. The Conference is held annually in Kyiv.
Eugene S. Kachmarsky, an M.A. in political science specialising in eastern Europe and the former USSR, is a graduate of the University of Toronto. He is currently the editor of the English-language monthly newspaper, Ukrainian Echo.
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Originally Composed: Tuesday August 20th 1996.
Date last modified: Friday March 21st 1997.